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Leon
Leon, Solicitor
Category: Australia Law
Satisfied Customers: 42668
Experience:  BEc Dip Ed, Dip Law (SAB) MTax (UNSW)
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Inquiry on Australia NSW Labor Law] I travel overseas on

Customer Question

[Inquiry on Australia NSW Labor Law]
I travel overseas on business and the flights include weekends and holidays. The company policy states no time in lieu or compensation will be provided for the weekends and holidays although it is for business.
I would like to know if this align with labor raw or national employment standard with the references to the related law articles.
Submitted: 7 months ago.
Category: Australia Law
Expert:  Leon replied 7 months ago.
Good MorningMy name is ***** ***** I am a NSW Solicitor. Thank you for your question, and will do my best to assist you with your question. Please understand this is not legal advise Please understand this is not legal advice but a guide to assist you.When you signed your agreement, did it refer to the policies as being part of your contract and you agreed with them?
Customer: replied 7 months ago.
Hello Leon, thank you for taking up the question and responding.To be exact, the policy is over 8 hour flight (one way) only be provided with time in lieu, which I was not aware. I looked into the contact and so far I found below.PUBLIC HOLIDAYS
8.1 I agree that by reason of the nature of ***'s business I may be required by *** to work on a public holiday as defined in holiday legislation applicable to me. If I am either rostered or required to work on a public holiday *** shall pay me at the rate of time and a half for the hours worked.Person specification
Must be flexible to travel within the Region for short periods as and when required and also to work
weekends on a rotation basisHours of Work:
Hours of work will be 37.5 hours per week, based on our standard business hours 8.30am to 5.00pm Monday to Friday. From time to time you may be required to work additional hours as advised by your Manager. As a salaried employee you are not eligible for overtime.Regards,
MO
Expert:  Leon replied 7 months ago.
Good MorningOn that basis if you work on a public holiday they have to pay you time and a halfThis would include flying for work. If they are not paying you, then you have a right to sue them.This does not include weekends.Is there any clause that refers to working more than 5 days? The last clause about reasonable additional hours is part of the NES.
Customer: replied 7 months ago.
No other clause as far as I am aware. Does this mean I need to work on weekends whenever the employer request to do so?
Expert:  Leon replied 7 months ago.
Yes the NES allows that as a salaried worker you can be required to work a reasonable amount of extra hoursfor no extra pay.Here is the linkhttps://www.fairwork.gov.au/how-we-will-help/templates-and-guides/fact-sheets/minimum-workplace-entitlements/maximum-weekly-hoursIf it is not reasonable then you can ask for payment but it is not easy.
Customer: replied 7 months ago.
I am afraid I do not agree. "Reasonable" should meet the conditions below, and the situation does not meet. I am not entitled to receive overtime, I was not noticed in advance that I had to flight as overtime on weekend.* if the employee is entitled to receive overtime payments or penalty rates for working the extra hours
* if they are paid at a higher rate on the understanding that they work some overtime
* if the employee was given enough notice that they may have to work overtime--------------------------------------------------------------------------------
https://www.fairwork.gov.au/employee-entitlements/hours-of-work-breaks-and-rosters/hours-of-work/when-overtime-applies#2169-2170Reasonable overtimeAn employer can request that an employee works reasonable overtime. Overtime can be reasonable so long as the following things are taken into account:any risk to health and safety from working the extra hours
the employee’s personal situation, including their family responsibilities
the needs of the workplace
if the employee is entitled to receive overtime payments or penalty rates for working the extra hours
if they are paid at a higher rate on the understanding that they work some overtime
if the employee was given enough notice that they may have to work overtime
if the employee has already stated they can’t ever work overtime
the usual patterns of work in the industry.An employee can refuse to work overtime, if the request is unreasonable.
-------------------------------------------------------------------------------I did not get any information that TIL or overtime will not be arranged for the weekend flights nor it was not stated in any contracts I signed. Employer can request to work on weekends without pay or liue whenever/however does not make sense. What if the employer requested to work on all weekends?
Expert:  Leon replied 7 months ago.
Good MorningIn the end it is up to the FWO to decide what is reasonable.If what you do is not seen as reasonable then the FWO will order that you be paid. It is not the employee saying they cannot work the hours. The law says that your employer can have you work a reasonable amount of extra hours and they form part of your normal hours.The link I sent you sets out what is reasonable. If you are working it even though you think it is unreasonable then there is a problem.If you and your employer cannot agree then you have to go to the Fair Work Ombudsman and have them decide.I understand what you are saying, but each case is looked at on its own merits and facts.
Expert:  Leon replied 7 months ago.
Good AfternoonI hope this has assisted and if there is nothing further thank you for using my services. If I have missed anything, or you have any further questions please let me know If there is anything else in the future please do not hesitate to ask. Please do not forget to leave positive feedback. RegardsLeon

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